[And Also: "JackD" over at Slate, succinctly responds to my second post: "Kagan, as a competent advocate, was simply putting an articulation to the experts that they accepted. She obviously phrased it the way she wished it phrased but they, as experts, accepted it. This process happens all the time in litigation. It is when communication meets expertise." As to Saletan, "Like too many in today's journalism, he's a tool for making the muck swirl instead of assisting in bringing clarity."]
Slate is my main base of operations respecting posts that have any real readership and the articles do have some interesting aspects, so I appreciate it, even if the new comment system has put its fray on the road to be moribund and the columnists are all all too often tools. For instance, I had posted at Kausfiles for awhile until the fact he is a total boob there (something I was told by at least one person who knows him personally) made it no longer proper to add to his page count.
Other writers, including William Saletan also of this class. Jack Shafer, for instance, spent multiple posts complaining about Bill Moyers, focusing on something he did in the 1960s and the his alleged failure to own up to it. This led to some readers to point out that Moyers is an asshole and anything he did decades later really is irrelevant. I have criticized Dahlia Lithwick as well, since Supreme Court reporting is important to me and think she too often leads with shtick instead of well rounded analysis. Saletan's tool qualities, including on abortion, has been referenced by others. This is so even if now and again he is not a boob.
A recent piece on an over decade old "scandal" involving a statement by the American College of Obstetricians and Gynecologists (ACOG) is all too standard. He says he is a pro-choice [here used given that legal choice is what matters, not the morality of the matter] but analyzes the matter in such a way akin to Lieberman caucusing with the Democrats, but going on FOX to legitimize that other side. This includes suggesting that his side should admit to how abortion is "bad" but should be legal. Since, as we all know, everyone can differentiate between the two.
If you go to the fray linked to the article, you can see my "Saletan's Emphasis Problem" post, which noted that it promoted anti-science Republican talking points (Kagan supposedly "deceived" the courts, who didn't realize an advocacy group, the ACOG, didn't have a Chinese wall between them and the political branches, underlining we should not put so much "faith" in science based organizations) and anti-choice (one person flagged the word, as if any word is really neutral here) groups (the D&X procedure a wedge issue -- also, see below).
[The replies are telling -- the cry of "partisan" with a high standard of proof while the person makes a bald statement without any of what "appears" to be the case while the other person who makes blanket statements on the other side is ignored for some reason. Failure to admit a medical decision is being made or refusal to answer a repeated comment on how part of the statement doesn't really say what the person claims it says. And, a reply that in effect says Saletan is great on this issue without responding to my extensive discussion. Oh, a few people who make sense.]
Anyway, I posted a follow-up, avoiding politics, starting with a quotation:
All of us should be embarrassed that a sentence written by a White House aide now stands enshrined in the jurisprudence of the Supreme Court, erroneously credited with scientific authorship and rigor. Kagan should be most chastened of all. She fooled the nation's highest judges. As one of them, she had better make sure they aren't fooled again.
Right after "a sentence" was cited, the Supreme Court in Stenberg v. Carthart said ... again the VERY NEXT SENTENCE:
With one exception, the federal trial courts that have heard expert evidence on the matter have reached similar factual conclusions.
The original statement spoke of the potential that the procedure would be critical for the health and life of the girl/woman involved. The final statement said it might be the best or most appropriate procedure. The original statement was based on the expertise of the group. The final statement said it in slightly different words. Where is the lack of scientific rigor? The expert testimony (the ACOG itself providing some -- again one sentence is not the reliance here*) suggests just the opposite. What "fooled" the judges? Did they rely on a sentence or the whole testimony and record provided? What should Kagan be chastened about?
It is useful to recall as Judge Posner did, that the procedure ban is:
not because the procedure kills the fetus, not because it risks worse complications for the woman than alternative procedures would do, not because it is a crueler or more painful or more disgusting method of terminating a pregnancy.
Justice Ginsburg, concurring. It should be kept in mind that the law in question banned a certain abortion procedure. It was the necessity of the procedure that was in question here. But, the abortion is separate. Even if the procedure is not used, the abortion could be performed if it is pre-viable or necessary for the health/life of the woman.
Either way, the abortion will disgust many people. I guess maybe some will say so, but is the legal alternative really less "disgusting" to many people in these cases? If so, it is so based on personal moral predictions that resting on just that is a pretty dubious reason particularly given the chance that it will endanger some woman's health or very lives. If the abortion is necessary, resting on the procedure that is less "disgusting" for the woman involved seems the most reasonable path. Either way, the statement does not say this procedure is more dangerous for the woman. Symbolism is the driving force here, and the possibility it will be a wedge issue.
The symbolism underlines the possible effect of articles like Saletan, in "liberal" publications, arguing that Kagan somehow "deceived" the courts and thus some big scandal is afoot. The organization originally said the procedure should be legal; the new phrasing (which they agreed to) seems to me just a way to state their position in a somewhat different way. As I said in my first post, the problem with editing scientific reports is not the editing per se, but illicit politically motivated change in content. Where is this here, especially given later ACOG statements? The procedure's legality was deemed "critical," and the new sentence in effect says why -- it might be the best one to use in some future case.
The bottom line is (as some comments on the article page itself note) simply not very exciting. By, using emotional laden terms, saying otherwise, WS is being a tool. This also in that the sensitive nature of the situation makes it open to mischaracterization. Is he somehow so above the fray that he doesn't realize this?
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* The opinion notes:
We cannot, however, read the American College of Obstetricians and Gynecologists panel’s qualification (that it could not “identify” a circumstance where D&X was the “only” life- or health-preserving option) as if, according to Nebraska’s argument (8), it denied the potential health-related need for D&X. That is because the College writes the following in its amici brief:
“Depending on the physician’s skill and experience, the D&X procedure can be the most appropriate abortion procedure for some women in some circumstances. D&X presents a variety of potential safety advantages over other abortion procedures used during the same gestational period. Compared to D&Es involving dismemberment, D&X involves less risk of uterine perforation or cervical laceration because it requires the physician to make fewer passes into the uterus with sharp instruments and reduces the presence of sharp fetal bone fragments that can injure the uterus and cervix. There is also considerable evidence that D&X reduces the risk of retained fetal tissue, a serious abortion complication that can cause maternal death, and that D&X reduces the incidence of a ‘free floating’ fetal head that can be difficult for a physician to grasp and remove and can thus cause maternal injury. That D&X procedures usually take less time than other abortion methods used at a comparable stage of pregnancy can also have health advantages. The shorter the procedure, the less blood loss, trauma, and exposure to anesthesia. The intuitive safety advantages of intact D&E are supported by clinical experience. Especially for women with particular health conditions, there is medical evidence that D&X may be safer than available alternatives.” Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 21—22 (citation and footnotes omitted).
IOW, as it originally said, the procedure might be "critical" to protect the health and life of the woman. The Kagan influenced phrasing very well might more clearly state just what it was trying to say originally. Kagan probably knew that the courts don't rest on such statements alone, but expansive medical testimony and briefing of this sort.
This underlines the reduced importance as a legal matter of the edited statement, which makes Saletan's suggestion the courts were fooled in any significant fashion (if at all -- many justices in the majority worked with legislative bodies and was likely aware that this sort of thing would be shown to some political actor) plain foolish.